The U.S. District Court for the Eastern District of Pennsylvania has recently dismissed a class action seeking a medical monitoring program for employees at a beryllium plant alleging exposure to airborne beryllium. Anthony v. Small Tube Manufacturing Corp., 2008 WL 4443896 (E.D.Pa.).

Gary Anthony, as sole class representative, asserted a claim of negligence on behalf of himself and a class of employees and former employees at the U.S. Gauge facility in Sellersville, Pa. The complaint alleged that the employees were exposed to airborne beryllium while working at the plant. The class was alleged to include several thousand members. The workers allegedly faced an increased risk of contracting “chronic beryllium disease” as a result of their exposure to airborne beryllium. CBD is a lung disorder which occurs when a person’s immune system over-reacts to inhaled particles of beryllium and produces pathological changes in the lungs called granulomas.

Beryllium is a strong, lightweight metal with a high melting point, high stiffness-to-weight ratio, and excellent thermal and electrical conductivity. Beryllium is used as a pure metal, but more frequently it is incorporated at low levels into alloys. Beryllium copper is the most widely used alloy, but beryllium is also combined with aluminum, nickel and magnesium, to produce a panoply of products from non-sparking tools, and aircraft brakes, to laser targeting systems and nuclear weapons.

The putative class sought the establishment of a medical monitoring program funded by defendants, and administered under court supervision. As readers of MassTortDefense may recall, a claim for medical monitoring under Pennsylvania law, requires a plaintiff to prove:

(1) exposure greater than normal background levels;

(2) to a proven hazardous substance;

(3) caused by the defendant’s negligence;

(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;

(5) a monitoring procedure exists that makes early detection of the disease possible;

(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and

(7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.

Redland Soccer v. Department of the Army, 548 Pa. 178, 195-196, 696 A.2d 137, 145-146 (1997).

Defendants here sought summary judgment, attacking the validity of the claim of the named representative. (And if he did not have a viable claim, he was not an adequate class rep.). Plaintiff could not show he was “sensitized” to beryllium. Defendants averred that beryllium sensitization is required to sustain a claim for medical monitoring based on exposure to beryllium. That is, without being sensitized to beryllium, a plaintiff cannot demonstrate that he is at a significantly increased risk of contracting chronic beryllium disease (CBD), the only known latent disease which results from beryllium exposure. A person becomes sensitized to beryllium when his immune system recognizes beryllium as a foreign agent and builds cells in the bloodstream to react against it. The defendants contended that this sensitization is a necessary precondition to the development of chronic beryllium disease.

Plaintiff argued that all individuals sufficiently exposed to beryllium are at risk for the development of beryllium-related health effects. The putative class, having been exposed, was at a significantly increased risk of contracting CBD and should be medically monitored for the development of beryllium sensitivity. Plaintiff contended that it has “long been known” that machinists of beryllium are at a significantly increased risk of contracting CBD, and, therefore, summary judgment was inappropriate in this case.

Defendants further asserted that the Pennsylvania intermediate appellate court’s decision in Pohl v. NGK Metals Corporation, 936 A.2d 43 (Pa.Super.2007), allocatur denied, 952 A.2d 678 (Pa.2008) (per curiam), specifically rejected a plaintiff’s experts’ conclusions that mere exposure to beryllium is sufficient to create a significantly increased risk of contracting CBD. Plaintiff responded that, at best, Pohl stands for the proposition that the plaintiffs in that case were unable to demonstrate that their specific exposures to beryllium rose to the level of creating a significantly increased risk of harm.

The federal court did not read the Superior Court decision in Pohl as establishing a positive rule of law that a plaintiff must prove that he or she is beryllium sensitized in all cases seeking medical monitoring for beryllium exposure. However, as a matter of expert proof, it was clear to the court that to be diagnosed with CBD one must in fact be both beryllium sensitized (as demonstrated by a positive test result) and have a positive pulmonary biopsy indicating the presence of granulomas. Without being sensitized to beryllium, plaintiff cannot ever have a diagnosis of chronic beryllium disease. Therefore, plaintiff cannot demonstrate he is at a significantly increased risk of developing CBD, the only latent disease which results from exposure to beryllium.

While plaintiffs’ experts opined that all individuals exposed to beryllium, including machinists like plaintiff, were at a significantly increased risk of contracting chronic beryllium disease, even before they become beryllium sensitized, the court found that the experts did not have the data necessary to support their conclusions in this regard. The “opinions” were “merely assumptions and speculation.” Specifically, they did not have, or base their opinions upon, any beryllium readings, measurements, or other exposure data from the U.S. Gauge plant.